An Analysis of Roe and Doe

Before 1973, abortion had been considered a matter for each state to decide through their legislatures. However, writings from justices on the Supreme Court at that time make it clear that they were looking for a case that would remove abortion from the political process and allow the judicial system to take control of the issue.

In order to accomplish this, the Court had to solve two problems. First, neither the word abortion nor any reference to it is contained in the Constitution. Second, given the repeated failures in state legislatures to legalize abortion, the Court feared that any decision they issued legalizing unrestricted abortion-on-demand might be met with a level of political resistance that would ultimately undo the decision.

To address the first concern, the Court ruled in Roe vs. Wade that, even though the right to abortion is not actually stated in the Constitution, it emanates from a penumbra of the right to privacy. (A penumbra is defined as a shadow.)

Then, to neutralize the possibility of a political backlash against the decision, the Court included language in Roe that appears to allow states to pass some restrictions on abortion. The most important example of this language is:

“State regulation protective of fetal life after viability thus has both logical and biological justifications. If the State is interested in protecting fetal life after viability, it may go so far as to proscribe abortion during that period, except when it is necessary to preserve the life or health of the mother.”

Roe vs. WadeUnited States Supreme Court
January 22, 1973

The Court was counting on the probability that prohibiting abortion after viability – except when the mother’s life or health are at risk – would seem like a reasonable compromise to most people.

But the rhetoric they used in Roe to create this compromise has two major flaws. First, viability is a moving target and is nothing more than a function of medical technology. This is proven by the fact that, today, premature babies routinely survive with no health problems at gestational ages that would have been unthinkable a hundred years ago. It should also be pointed out that a fundamental conflict of interest is created here since, in the context of abortion, the decision about whether an unborn child is viable or not is left up to the one doing the abortion.

Beyond that, the biggest problem with this paragraph is in the word “health.”

Judicial documents such as this inevitably contain a definition section that defines any words or terms that could be ambiguous or misinterpreted. But, interestingly, no definition for “health” was included in Roe. However, that doesn’t mean a definition for it was omitted.

Sometimes, the Court issues what are called “companion decisions.” These decisions are made up of two or more cases on a common or closely related subject that must be read together in order to get the full impact of the rulings. This is what happened in the case of Roe vs. Wade. It was part of a companion decision along with a case called Doe vs. Bolton. And in that ruling, the definition of “health” is given:

“… in the light of all factors—physical, emotional, psychological, familial, and the woman’s age—relevant to the well-being of the patient. All these factors may relate to health.”

Doe vs. BoltonUnited States Supreme Court
January 22, 1973

The Court’s strategy is transparent. In Roe, they (a) included wording that could be perceived as a compromise, (b) based that compromise on the word ”health,” and (c) left out any definition for this word. Then, at the same moment, they issued Doe with a “catch-all” definition of heath that is so broad it could apply to any circumstance in which a girl or woman might be pregnant. The effect was to take the “compromise” included in Roe – which the Court clearly did not want – and quietly remove it in Doe.

What the justices understood was that had they included their definition for health in Roe, the American people would have seen that they were making unrestricted abortion-on-demand legal throughout pregnancy. But the court also realized that Roe would get all the media attention and, thus, allow Doe to fly under the radar. In effect, Doe was not intended to merely define “health,” it was going to also conceal it from the public.

And that is exactly what happened. Despite the fact that Doe vs. Bolton would have as much impact on abortion policy as Roe vs. Wade, media coverage at the time generally made no mention of it. As a practical matter, only the legal community was aware of Doe or paid any attention to it.

Over the years, even many judicial scholars who support legalized abortion have acknowledged that Roe was a political decision rather than a judicial one and that the Court simply “manufactured” a Constitutional right to abortion. This has caused Roe to often be characterized as an exercise in raw judicial power, with one former Supreme Court justice predicting that Roe, “… is clearly on a collision course with itself …”

It is also interesting to note that the litigants in the two companion decisions have since publicly renounced the legalization of abortion. Both Norma McCorvey (Roe) and Sandra Cano (Doe) have stated that they were deceived and manipulated by the attorneys involved.

Since 1973, most pro-life legislation has been limited to regulating the practice of abortion rather than preventing it. These laws have dealt with issues like parental notification for minors, waiting periods, informed consent, clinic safety standards, etcetera. This approach is driven by the conclusion that Roe and Doe will not allow for anything beyond that.

Recently, however, laws that would prohibit some specific abortions have been passed in a few jurisdictions. They are, of course, immediately challenged by the abortion lobby and sent into the federal court system where they face an uncertain future. It seems clear that, in order for these statutes to be ruled Constitutional, the Supreme Court will have to either overthrow Roe and Doe or, at minimum, toss out certain parts of them.